CA Unpub Decisions

The only issue in this appeal is whether a defendant who may be entitled to costs under Code of Civil Procedure section 998[1] – because the plaintiffs did not accept his offers to compromise and did not do better at trial – must apportion the costs between or among multiple plaintiffs. The trial court denied the motion of appellant Jacob Wilson to assess costs and enter judgment against respondents Taron Morris and Janae Vannell because he filed a single memorandum of costs, without indicating which costs applied to which plaintiff.
We reverse. We have found no authority for requiring a defendant whose costs may exceed the plaintiffs’ jury verdict to apportion costs when he files his memorandum of costs after the plaintiffs proceeded in lockstep on a single theory and were represented by the same attorney. If the plaintiffs objected to the costs bill, they were required to move to tax costs in the trial court. They made no such motion.[2] We return the matter to the trial court to evaluate Wilson’s request for costs and a judgment in his favor.

An amended felony complaint filed in April 2009 charged Fahey with committing lewd acts on a child under age 14 (Pen. Code, § 288, subd. (a); all statutory references are to the Penal Code unless noted) between January 1996 and December 1998 (count 3), and again in September 2001 (count 1), and possessing child pornography (§ 311.11, subd. (a)) in June 2008 (count 2). The complaint alleged Fahey had substantial sexual conduct (§ 1203.066, subd. (a)(8) [masturbation]) with the victim in count 3, and committed sexual offenses against more than one victim (§ 667.61, subd. (b), (e)).
Laguna Beach Police Officer Deborah Kelso testified at Fahey’s October 2010 preliminary hearing that in May 2008 Nicole F. (born in February 1991) disclosed she met Fahey at the beach in September 2001. He claimed he was a professional photographer and asked to photograph her. After a subsequent photo shoot at a park, Nicole accompanied Fahey to a Laguna Beach apartment. Fahey asked her to remove her shirt and get on a bed. She complied, and he took additional photos of her in her jeans and underwear. He then asked her to remove her pants and get on her hands and knees. He took photos of her vagina. He then physically manipulated her vagina and took additional close-up photos. He moved his finger back and forth and told her not to tell her mother.

A jury convicted defendant Rigoberto Ricardo Hernandez, Jr., of felony driving under the influence of alcohol (Veh. Code, § 23152, subd. (a) (DUI))[1] and felony driving with a blood-alcohol concentration of .08 percent or more (§ 23152, subd. (b)) and, as to both offenses, found true the allegation defendant had a blood alcohol-concentration of .20 percent or more (§ 23538, subd. (b)(2)). The trial court found true the allegations defendant had suffered a prior felony conviction for DUI within 10 years (§ 23550, subd. (a)), and defendant had served three prior prison terms but did not remain free of custody for a period of five years prior to the commission of the above felony offenses (Pen. Code, § 667.5, subd. (b)). Defendant also pleaded guilty to misdemeanor driving on a suspended license (§ 14601.2, subd. (a)).

A modification decision.

The Cabrera Firm and Guillermo Cabrera for Cross-defendant and Respondent.
In this employment discrimination case, an employee was promoted from her position as the operations manager of one portion of her employer's title, escrow and credit information business to vice-president of a new and separate marketing entity her employer established. Following her promotion, a male who was younger than the employee took over her position as operations manager. The new marketing entity did not do well and, according to the employer, the employee did not perform well in her new position. The employee was terminated, and the new entity was discontinued.
The trial court rejected the employee's contention that in losing her position as operations manager the employee was the victim of unlawful discrimination. The trial court found that the employee's promotion to vice-president of the marketing entity was not an adverse employment action and that her later termination from that position was based on the employee's performance as well as financial and economic circumstances. The record fully supports the trial court's finding on these issues. Thus, we affirm the trial court's judgment in favor of the employer.

Following a mistrial and the subsequent dismissal of his murder charge, the jury in defendant Florencio Jose Dominguez's second trial convicted him of first degree murder (Pen. Code,[1] § 187, subd. (a); count 1) and conspiracy to commit murder (§§ 182, subd. (a)(1), 187; count 2). The jury also made true findings Dominguez or a principal used a firearm causing the death of another person (§ 12022.53, subds. (d) & (e)(1)), and he committed counts 1 and 2 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court sentenced Dominguez to 25 years to life on count 1 and imposed a consecutive 25-years-to-life enhancement for the firearm allegation. Sentences on the remaining count and allegations were stayed.
Dominguez contends double jeopardy barred his retrial in the second case after the jury deadlocked and the court expressly dismissed without prejudice the first case. Alternatively, Dominquez contends his conviction must be reversed because the court (i) prejudicially erred in connection with a series of evidentiary rulings and (ii) improperly responded to a question posed by the jury during its deliberations.
As we explain, we disagree with these contentions and affirm Dominquez's judgment of conviction.

Defendant Clemente Raygoza was charged by second amended information with attempted premeditated murder (Pen. Code, §§ 664, 187, subd. (a); count 1)[1], assault with a deadly weapon (§ 245, subd. (a)(1); count 2), assault by means likely to produce great bodily injury (§ 245, subd. (a)(1); count 3), and dissuading a witness from testifying (§ 136.1, subd. (a)(1); count 4). It was alleged that defendant used a dangerous and deadly weapon (§ 12022, subd. (b)(1); count 2) and caused great bodily injury (§ 12022.7, subd. (a); counts 1, 2 & 3). The jury found defendant guilty, and all special allegations were found to be true. He was sentenced to an aggregate term of 11 years, consisting of seven years on count 1, and four years for the enhancements on count 1. His sentences on the remaining counts and enhancements were stayed under section 654.
On appeal, defendant contends the trial court erred by failing to instruct on the lesser included offense of voluntary manslaughter under the theories of heat of passion and imperfect defense of others. Defendant also contends, and respondent concedes, that he may not be convicted of both counts of assault, because the counts arose from the same conduct and were merely alternative theories of the same offense. He therefore maintains that only one assault conviction may stand. Lastly, defendant contends there was insufficient evidence he actually dissuaded a witness from testifying, as alleged in the information, as the witness testified at the preliminary hearing and trial. Alternatively, he contends the evidence shows only that he attempted to influence her testimony, rather than discourage her from testifying. While we conclude defendant was entitled to an instruction on voluntary manslaughter under an imperfect defense of others theory, we find that the error in failing to give the instruction was harmless. We also find that only one of defendant’s assault convictions may stand. We are not, however, persuaded by defendant’s remaining contentions.

Plaintiffs, Marjorie Mack and Shannon-Joy Gossett, appeal from the trial court’s orders and judgment in favor of defendant City of Hawthorne (the city). They argue it was error to grant the city’s motion for summary adjudication of their race and gender discrimination claims. Plaintiffs also contend the trial court erred in granting the city’s nonsuit motion on the retaliation claim. In addition, plaintiffs challenge the trial court’s evidentiary rulings before and during trial. We affirm the orders and judgment.

In August 2007, Newport Beach police responded to a hotel regarding a report of a missing 15-year-old girl. While an officer talked to the girl’s mother in the lobby, the mother learned the girl had returned to their room. The officer and the mother went to the room and found the girl. The officer described the girl as appearing “a little hung over” in that she smelled of alcohol, and had bloodshot eyes and “disheveled” hair.

This case concerns the City of Visalia’s approval of a conditional use permit for the expansion of an existing retail store into a 24-hour supercenter. An unincorporated association called Visalia Smart Growth Coalition (Coalition) petitioned the superior court for an order setting aside the city’s approval, alleging violation of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)[1] (CEQA). The superior court granted and denied the petition in part.
The Coalition appeals the portion of the court’s decision denying part of the petition. It contends that the lead agency, the City of Visalia (city), violated the procedural requirements of CEQA by failing to disclose required information in the EIR in response to public comments. In particular, the Coalition argues that the city failed to provide information and calculations supporting the EIR’s determination that a 14-foot masonry wall would mitigate noise impacts for residents living near the store’s proposed loading docks.
We disagree and affirm the judgment.

This is an appeal from an order denying a motion to vacate the judgment pursuant to Penal Code section 1016.5 (hereafter, section 1016.5). We conclude that principles of stare decisis favor adherence to the rule established by this court in People v. Ramirez (1999) 71 Cal.App.4th 519, 522, permitting the section 1016.5 advisement to be given in writing prior to acceptance of a guilty or no contest plea, and that defendant and appellant Armando Alvarez-Quintero has not presented sufficient reasons for changing that rule. Accordingly, we affirm the order on defendant’s section 1016.5 motion.

Defendant challenges the total amount of conduct credits he was awarded for time spent in county jail prior to commencement of his prison sentence. We find no error and affirm the trial court’s judgment.

Appellant appeals from the judgment in an interpleader action, which determined that the proceeds of decedent’s life insurance policy should be distributed in accordance with a change of beneficiary form executed by decedent and appellant prior to decedent’s death, rather than pursuant to the original designation of appellant as the sole beneficiary. We find no error in the judgment and affirm.

Appellant/defendant Richard Murray Payne has a lengthy criminal record. The instant appeal concerns his activities from 2008 to 2011, which began when he was arrested for committing drug offenses in 2008. He was released on bail on April 16, 2010, and failed to appear as ordered on April 26, 2010. A bench warrant was issued for his arrest, and he was returned to custody on or about May 26, 2010. Defendant was again released on bail on August 31, 2010, but he failed to appear on October 15, 2010, and a bench warrant was again issued for his arrest. Defendant was finally returned to custody when he was arrested on February 28, 2011, for committing additional drug offenses, and he remained in custody for the rest of the criminal proceedings.